Shepard v. Shepard , 7 Johns. Ch. 57 ( 1823 )

The Chancellor.

The plaintiff, upon the facts arising out of the bill and answer, claims the assistance of the Court, (1.) to make effectual, according to the terms of it, the deed to her from her husband, Hazel Shepherd, of the 26th of December, 1808; or, if that deed cannot be enforced as against the defendant, thqt then, (2.) the defendant be decreed to pay to her the annuity of 60 dollars, according to the terms of bis covenant made to her husband, on the 6th of January, 1817; or, (3.) that her dower in the real estate, whereof her husband was seised, and which is now claimed by the defendant, be duly assigned to her, and that an account be also rendered to her of the rents and profits, from her husband’s death.

1, The deed from H. S. to the plaintiff, was undoubtedly void in law, for the husband cannot make a grant or conveyance directly to his wife, during coverture. (Co. Lift. 3 a.) And in equity, the Courts have frequently refused to lend assistance to such a deed, or to any agreement between them. Thus, in Stoit v. Ayloff, (1 Ch. Rep. 33.) the husband promised to pay his wife 100 pounds: they separated, and she filed her bill for that sum. But the Court would not relieve the plaintiff, “ because the debt was sixteen years old, and the promise made by a husband to a wife, which the Court conceived to be utterly void in law.” Again, in Moyse v. Gyles, (2 Vern. 385. Prec, in Ch. 124.) the husband made a grant or assignment of his interest in a church lease, to his wife : she brought a bill, after his death, to have the defective grant supplied, and the Court held the grant to be void in law, and dismissed the bill, as the grant was voluntary and without consideration. So, in Beard v. Beard, (3 Atk. 72.) the husband, by deed poll, gave to his wife all his substance which he thenhad, or might thereafter have. Lord Hardwicke considered the deed poll to be so far effectual, as to be a revocation of a will, by which the testator had given all his estate to his brother; yet that it could not take effect as a grant or deed of gift to the wife, “ because, the law will not permit a man to make a grant or conveyanee to the wife, in his lifetime, neither will this Court suffer the wife to have the whole of the husband’s estate, while he is living, for it is not in the nature of a provision, which is all the wife is entitled to.”

a ¡¡unable provisión, by deed from a w“fe> will be ™

It is to be observed, that none of these cases were determined strictly and " entirely upon the incapacity of the husband to convey to the wife, according to the rule of law; and they do not preclude the assertion of a right, a Court of equity, under certain circumstances, to assist such a conveyance. The Court relied upon the staleness of the demand in the first case, and upon the want of consideration in the second, and upon the extravagance of the gift in the third, as also constituting grounds for the decree ; and it is pretty apparent, that if the grant in each ease had been no more than a suitable andyueritorions provision for the wife, the Court would have been inclined to assist it. In Slanning v. Style, (3 P. Wms. 334.) Lord Talbot said, that Courts of equity have taken notice of, and allowed feme coverts to have, separate interests by their husbands’ agreement, especially where the rights of creditors did not interfere. And in More v. Ellis, (Bunb. 205.) articles of agreement, executed between husband and wife, were held binding without the intervention of trustees. So, in Lucas v. Lucas, (1 Atk. 270.) Lord Hardwicke admitted, that in Chancery, gifts between husband and wife have often been supported, though at law the property is not allowed to pass; and.he referred to the case of Mrs. H. and to that of Lady Cowper. And in the very modern case of Lady Arundel v. Phipps, (10 Ves. 146. 149.) Lord Eldon held, that a husband and wife, after marriage, could contract, for a bona fide and valuable consideration, for a transfer of property from the husband to the wife, or to trustees for her»

The consideration for the deed to the wife, in the case before me, was very meritorious. It was “ natural affection, and to make sure a maintenance for the said Anna S., wife and consort of H. 6'., in case she should survive him.” She had been induced, prior to the marriage, to release to H. S. all right and claim of dower to arise under the intended marriage, and the consideration for this release, was an engagement on his part, that she should have dower in any real estate to be purchased by them “ by their prudence and industry during the cohabitation.” But no estate was purchased by them by those means, and, according to the literal terms of those deeds, she was barred of her dower without any substitute. The deed to the wife, of certain lands, being part and parcel of his estate, for and during her widowhood, was, therefore, no more than a just and suitable provision, and one that a Court of equity can enforce consistently with the doctrine of the casj|s. The defendant does not stand in the light of a creditor, or of a purchaser for a valuable consideration without notice, and we have none of the difficulties before us, which such a character might create. He does not deny notice of the existence of the deed to the plaintiff, when he received the deed of the same lands from H, S.j and he does not pretend that he gave any thing more than the nominal consideration of 25 dollars, though the consideration of 1000 dollars was inserted in the deed. The fact that he did, on the day of tne date of that deed, reconvey the lands to H, S., his father, for life, and did annex thereto a covenant to pay to the plaintiff an annuity of 60 dollars, during her widowhood, (and which he now says is more than the annual value of the land,) is decisive evidence that he took the land of his father, with knowledge of the equitable claim of the plaintiff, and with an engagement on his part, to give her a reasonable compensation in extinguishment of that claim.

I conclude, accordingly, that the deed from the hus™ band to the wife, may and ought, in this case, to be aided and enforced by this Court. This would seem to be the most safe and effectual relief to her, and it is one that her husband intended, before the alienation of his affections. The defendant would deprive her not only of her rights under this deed, but of all right and title to dower, by reason of her ante-nuptial release, and also of all . e e 1 compensation, in lieu of dower, under his covenants," which were macje to the husband, and by him subsequently released,

ther^ conveyed son> on his covenanting to pay hi" "“‘mother” Idowhoo'v she may maintain an action on the covenant ^°r "benefit1; and a release of the covenant by the h“sSpf"t^1Cj ™ ñ'a>-‘dulentand her.

But if the deed of 1808 was out of the question, should then have no difficulty in declaring that the defeni , , i..,, . , dant was bound to pay her the stipulated annuity, or the gross sum of 400 dollars in lieu of it, on her releasing all right and title, as wife of H. S., to his estate, as described • ill . 111 the deed to the defendant. The relationship between the husband and wife, was sufficient to entitle the plaintiff to her action upon the covenant to her husband, and which was made for her benefit. The consideration enured from the husband, and arose from the obligations of that relation ; and the release of the defendant from his covenants by H. S. was fraudulent and void, as respected the plaintiff, who had the sole beneficial interest in the covenants, and who was alone entitled in equity to release them. In Dutton v. Poole, (2 Lev. 210, 1 Vent. 318. T. Jones, 103.) the defendant, in consideration that his father, at his request, would not cut and sell certain timber growing, promised to pay the plaintiff, his sister, 1000 pounds, and it was held, after solemn argument, that an action of assumpsit lay at law, in the name and on behalf of the sister, and the judgment was affirmed on error to the Exchequer chamber. It was said, that the beneficial interest was in her, and she was the party who might have released. Lord Mansfield., in Martyn v. Hind, (Cowp. 443. Doug. 142.) said, that it was difficult to conceive how a doubt could have been entertained about this case of Dutton v. Poole. The same doctrine appears in the more early case of Starkey v. Mill, (Sty. 196.) and it has had the sanction also of Mr. Justice Butter, in Marchington v. Vernon. (1 Bos. & Pul. 101. in notis.)^(a) But it is quite _ unnecessary to dwell longer on this second point. The. plaintiff is entitled to the use and enjoyment of the land contained in the deed, for and during her widowhood; and as the deed is void at law, and can only be sustained in a Court of equity, it becomes necessary that the remedy should be afforded here, and it forms a just and proper subject of equitable jurisdiction.

I shall, therefore, direct a reference to ascertain the net value of the rents and profits, from the death of the husband on the 25th of April, 1819, to the date of the report; and that the defendant, within thirty days after notice of this decree, deliver up possession to the plaintiff, of the premises contained in the deed to her, and included in the deed from II, S. to the defendant; and that the defendant, and all persons under him, be enjoined from disturbing the plaintiff, after she shall have obtained possession of the land, and been put into the pernancy of the future rents and profits, and in the enjoyment thereof, to her own use and benefit, during her widowhood; and that he pay to her the rents and profits so to be ascertained, within thirty days after the report made and confirmed, together with her costs of this suit, to be taxed, or that the plaintiff have execution therefor.

Decree accordingly.

(a) {a) See SchermerJtorn v. Vanderheyden, 1 Johns. Rep. 139. S.P.